San Diego Innovation Center v. Skyriver Communications CA4/1

Filed 8/25/23 San Diego Innovation Center v. Skyriver Communications CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

SAN DIEGO INNOVATION CENTER, D080972 LLC,

Plaintiff, Cross-defendant and Respondent,

v. (Super. Ct. No. 37-2020-0027901- CU-BC-CTL) SKYRIVER COMMUNICATIONS, INC.,

Defendant, Cross-complainant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Keri G. Katz, Judge. Dismissed. Esensten Law, Robert Lawrence Esensten, and Randi R. Geffner for Defendant, Cross-complainant and Appellant. Kimball, Tirey & St. John LLP and David Charles Williamson for Plaintiff, Cross-defendant and Respondent.

Failure to file a timely notice of appeal is jurisdictional, mandating dismissal. In this landlord-tenant dispute over unpaid rent during the COVID-19 pandemic, the trial court entered judgment for the landlord following a bench trial. The tenant did not appeal within 60 days of being served with a notice of entry of the judgment. (Cal. Rules of Court, rule 8.104(a)(1).) A later amended judgment adding attorney’s fees did not substantially change the judgment to affect the deadline to appeal. (Torres v. City of San Diego (2007) 154 Cal.App.4th 214, 221 (Torres).) Because this appeal is untimely, we lack jurisdiction to consider its merits and accordingly must dismiss.

FACTUAL AND PROCEDURAL BACKGROUND

Skyriver Communications, Inc. (Skyriver) leased a commercial property from San Diego Innovation Center (SDIC). The multi-year lease was set to end in July 2021. Early in the COVID-19 pandemic, Skyriver vacated the premises and stopped paying rent. SDIC sued for breach of the lease agreement to recover unpaid rent and related expenses through the end of the lease term. Skyriver asserted various affirmative defenses in its answer and cross-complained for breach of contract, fraud, and tortious interference with contractual relations. The parties appeared before Judge Katz for a four-day bench trial on the complaint and cross-complaint. On March 9, 2022, Judge Katz issued a final statement of decision resolving contested issues in SDIC’s favor and directing SDIC to prepare a proposed judgment. The court thereafter entered judgment on March 29 for SDIC on its complaint, awarding “damages in the amount of $486,489.55, plus costs and fees according to proof.” Judgment was also entered in favor of SDIC on Skyriver’s cross-complaint. SDIC served